Citation Nr: 0211959
Decision Date: 09/13/02 Archive Date: 09/19/02
DOCKET NO. 98-10 107 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama
THE ISSUE
Entitlement to an increased rating for arteriosclerotic
cardiovascular disease, status post coronary artery bypass
graft with hypertension and myocardial infarction, currently
evaluated as 60 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Horrigan, Counsel
INTRODUCTION
The veteran performed verified active duty from June 1961 to
August 1973, and from June 1976 to October 1985. In October
1985, he was placed on the temporary disability retired list.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1997 rating decision by the
RO that denied an evaluation in excess of 60 percent for the
veteran's cardiovascular disability, then characterized as
arteriosclerotic cardiovascular disease, status post coronary
artery bypass graft and hypertension. In May 2000, the
veteran appeared and gave testimony at an RO hearing before
an acting member of the Board. A transcript of this hearing
is of record.
The Board remanded to the RO in March 2001 for further
development, to include a VA cardiovascular examination. In
a rating decision dated in September 2001, the RO assigned a
100 percent schedular rating for the veteran's cardiovascular
disorder recharacterized as arteriosclerotic cardiovascular
disease, status post coronary artery "disease" (sic) and
hypertension and myocardial infarction effective from January
22, 2001 through April 30, 2001, with a 60 percent rating
assigned thereafter.
In February 2002, the veteran again appeared and gave
testimony at an RO hearing before the undersigned Board
member. A transcript of that hearing is also of record. The
case is now before the Board for further appellate
consideration.
In a VA Form 9 dated in August 2001, the veteran indicated
that he was also seeking service connection for transient
ischemic attacks. This issue has not been adjudicated by the
RO and is therefore referred to the RO for all appropriate
action.
FINDING OF FACT
The veteran's service connected cardiovascular disorder
causes angina on moderate exertion and precludes him from
performing more than sedentary labor.
CONCLUSION OF LAW
The criteria for a 100 percent rating for arteriosclerotic
cardiovascular disease, status post coronary artery bypass
graft and hypertension and myocardial infarction have been
met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 1991 & Supp.
2001); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7005 (1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board initially notes that, during the pendency of this
appeal, the Veterans Claims Assistance Act of 2000 (VCAA),
Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into
law. This provision was codified at 38 U.S.C.A. § 5100 et.
seq. (West 1991 & Supp. 2001). This liberalizing law is
applicable to this appeal. Karnas v. Derwinski, 1 Vet. App.
308, 312-13 (1991). To implement the provisions of the law,
VA promulgated regulations published at 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a)). The Act and implementing
regulations provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim. It also includes new notification
provisions. Specifically, it requires VA to notify the
claimant and any representative of any information, and/or
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and any representative which portion, if any, of the evidence
is to be provided by the claimant and which part, if any, VA
will attempt to obtain on behalf of the claimant.
The Board was cognizant of the Veterans Claims Assistance Act
of 2000 when it remanded the veteran's current claim in March
2001, and the RO was instructed in the remand to ensure that
all notification and development required by the new law were
completed. Accordingly, the RO sent the veteran a letter in
April 2001 that informed him of this new law and its
implications for the current claim. In addition, the veteran
and his representative have been informed of the laws and
pertinent regulations governing his claim for an increased
rating for his cardiovascular disability in a statement of
the case dated in May 1998 and in supplemental statements of
the case dated in September 1998, December 1998, July 2001,
and October 2001.
In addition, the veteran was afforded an opportunity to
provide testimony regarding the relevant evidence in this
case during his hearings at the RO in May 2000 and February
2002. Also, the clinical record concerning the claim for an
increased rating for the veteran's cardiovascular disability
addressed in this decision includes a recent VA
cardiovascular examination and private clinical records from
as recently as March 2002. Thus the evidentiary record in
this case now appears to be complete, and there is no
indication that significant, relevant evidence is available,
but has not been considered. Therefore, no further
evidentiary development or notice appears to be necessary in
regard to the veteran's claim for entitlement to an increased
rating for his service connected cardiovascular disorder.
I. Factual Background
The service medical records reveal that the veteran was
treated during service for exertional chest pain that was
classical for angina pectoris. In August 1983, he underwent
coronary artery bypass graft surgery times three. In a
rating decision of June 1986, the RO granted service
connection for arteriosclerotic cardiovascular disease,
status post coronary artery bypass graft with hypertension,
and assigned a 30 percent rating.
The veteran suffered a myocardial infarction in January 1993.
In a June 1993 rating decision, the RO assigned a 100 percent
schedular rating from January 27, through August 31, 1993,
with a 30 percent evaluation thereafter.
In December 1995 the veteran was hospitalized at a private
facility for the treatment of chest pain. Cardiac
catheterization revealed saphenous vein graft occlusion and
an angioplasty of the saphenous vein graft to the right
coronary artery was performed during this hospitalization.
In a rating decision of June 1996 the RO increased the
evaluation for the veteran's service connected cardiovascular
disease to 60 percent disabling, effective January 30, 1996.
Private clinical records reveal outpatient treatment in April
1997 for complaints of easy fatigue, and shortness of breath
with exertion. He reportedly experienced chest discomfort
perhaps twice a week and he had a sensation of chest
tightness on exertion. The diagnoses included angina
pectoris, and arteriosclerotic heart disease, status post
coronary artery bypass graft.
The veteran underwent private hospitalization in September
1997 for complaints of chest discomfort. Cardiac
catheterization revealed severe coronary artery disease with
a total occlusion of the saphenous vein graft to the
circumflex. The saphenous vein graph to the right coronary
artery was 95 percent stenosed below the origin. Distally,
there was arteriosclerosis but no significant obstruction.
The veteran thereupon underwent a successful angioplasty and
a stent was placed at the proximal saphenous vein graft of
the right coronary artery. When seen as an outpatient in
late September 1997, it was reported that the veteran's
angina pectoris had been reduced. During private treatment
in March 1998, the veteran reported that he had no angina.
During private treatment in May 1999, the veteran reported
that he suffered from shortness of breath and fatigue on
exertion. He also reported mild chest discomfort.
Evaluation of the heart revealed a faint possible S3 at the
apex and a grade 1/6 systolic murmur at the left sternal
border and apex. The veteran's chest discomfort was
considered to be non-cardiac in origin.
A private echocardiogram performed in early March 2000
demonstrated moderate left atrial enlargement, concentric
left ventricular hypertrophy with a moderate decrease in the
left ventricular ejection fraction to 45 percent. The right
ventricle was at the upper limit of normal. The aortic valve
opened normally, and the mitral and tricuspid valves opened
normally without stenosis or prolapse. A Doppler study
revealed trace pulmonic insufficiency, mild mitral
regurgitation and mild tricuspid regurgitation. There was a
mild elevation in right ventricular systolic pressure.
A two-day Cardiolite stress protocol was performed at a
private medical facility in late March 2000. In the course
of the tests the veteran's blood pressure rose from 152/94 to
164/90. The veteran's heart rate was 72 rising to 150 beats
a minute at 7 minutes and 15 seconds. The heart rate was
approximately 84 percent of target. Some chest tightness was
reported. An electrocardiogram at rest revealed normal sinus
rhythm, and an anteroseptal myocardial infarction of
undetermined age. There was nonspecific ST-T abnormality.
With stress there was further ST depression and flattening
inferiorly and in V5 and V6, but it was still 1.1 millimeter
or less. Therefore the stress test was clinically positive
and electrically nondiagnostic. Scans showed very minimal
posterior ischemia in a very small area that was possibly of
no clinical significance. There was an inferior posterior
scar and a posterolateral scar that were both rather large.
The resting gated left ventricular wall motion study revealed
interventricular septal hypokinesia and posterior basilar
wall hypokinesis. The calculated global left ventricular
ejection fraction was moderately depressed at 41 percent.
Comparisons to data from April 1999 revealed similar
findings, although the ejection fraction had improved from 35
percent to 41 percent.
During a hearing before the Board in May 2000, the veteran
said that he became fatigued at times and also experienced
dizziness and lightheadedness. He said that he became tired
easily after walking a certain distance or climbing steps.
It was said that the veteran's cardiologist had advised him
not to mow his lawn or perform any heavy work. The veteran
believed that he could probably walk a city block on a good
day. The veteran was currently working for the Social
Security Administration, but he had formerly worked in the
security department of a power company. The veteran reported
receiving regular private medical treatment for his heart
condition.
In January 2001 the veteran was hospitalized at a private
facility after experiencing an episode of prolonged chest
pain. The veteran was diagnosed as having an inferior
myocardial infarction with stutter-step chest pain. Cardiac
catheterization revealed that the right coronary artery was
totally occluded proximally and this appeared to be an old
occlusion. The left main was totally occluded in its mid to
distal portion. The saphenous vein graft to the left
anterior descending was widely patent with good distal runoff
and mild diffuse luminal irregularities. There was a totally
occluded saphenous vein graft that must have gone to the
obtuse marginal vessel. The saphenous vein graft to the
right coronary artery was totally and acutely occluded.
There was anterior wall motion demonstrated, but inferior
akinesis. The ejection fraction overall was about 45 percent
to 50 percent. The veteran then underwent a balloon
angioplasty and a stent was inserted in the right coronary
artery. It was noted that at the end of the procedure there
was still a large thrombus burden in the graft.
After a privately conducted stress test conducted in April
2001 it was noted that the global left ventricular ejection
fraction was 31 percent. Subsequent outpatient treatment for
cardiovascular disease is indicated
After a VA cardiovascular examination in May 2001 the
diagnosis was coronary artery disease, status post bypass
surgery with three grafts with chronic subsequent occlusion
of the obtuse marginal, and recurrent problems with ischemia
in the distribution of the right coronary artery. The
ejection fraction was variously estimated at 35 percent to 45
percent. The doctor estimated that the veteran had frequent
angina at approximately 5 METs that necessitated him taking
nitroglycerin prior to slow walking. He did not have
significant symptoms of congested heart failure, but he did
have angina on moderate exertion. The examiner believed that
the veteran could not perform more than sedentary labor and
could not perform even moderate exertion. The veteran's left
ventricular ejection fraction was impaired and diminished,
but indicators did not show an ejection fraction less than 30
percent. The veteran's symptoms seemed to be caused
primarily by angina.
During a February 2002 hearing at the RO before the
undersigned Board member the veteran said that he was
currently working as a clerk typist. He said that his
ability to work at home was very limited, and he could not do
yard work or wash his car. He wore a Nitro patch and took
Nitro tablets. The veteran said that, without a Nitro
tablet, he could not walk quickly for 20 to 25 yards without
experiencing chest discomfort. With a Nitro tablet he
estimated that he could walk about a quarter mile. He
reported occasional chest pains while sitting at his desk.
After a privately conducted stress test in February 2002, the
veteran's ejection fraction was recorded as 41 percent. No
significant changes since April 2000 were noted.
II. Legal Analysis
Disability evaluations are determined by application of a
schedule of ratings, which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic
codes identify the various disabilities.
Effective January 12, 1998, the VA revised the criteria for
evaluating heart and cardiovascular disabilities. See 62
Fed. Reg. 65219 (1997). The new criteria for evaluating
cardiovascular disabilities are considerably different from
those in effect prior to January 12, 1998. The United States
Court of Appeals for Veterans Claims (Court) has held that,
where the law and regulations change after a claim has been
filed or reopened, but before the administrative or judicial
appeal process has been concluded, the version most favorable
to the veteran will apply. Karnas v. Derwinski, 1 Vet. App.
308 (1991).
Regulations require that where there is a question as to
which of two evaluations is to be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
Under the criteria for the evaluation of arteriosclerotic
heart disease in effect prior to January 12, 1998, a 60
percent rating was assigned following a typical history of
acute coronary occlusion or thrombosis or with a history of
substantiated repeated anginal attacks with more than light
manual labor not feasible. A 100 percent rating was assigned
during and for 6 months following acute illness from coronary
occlusion or thrombosis, with circulatory shock, etc. A 100
percent rating could be assigned after six months with
chronic residual findings of congestive heart failure or
angina on moderate exertion or if more than sedentary
employment was precluded. 38 C.F.R. § 4.104, Diagnostic Code
7005 (1997).
Under the criteria for the evaluation of arteriosclerotic
heart disease in effect on and subsequent to January 12,
1998, a 60 percent rating is assigned with documented
coronary artery disease resulting in more than one episode of
acute congestive heart failure in the past year, or; a
workload of greater than 3 METs but not greater than 5 METs
results in dyspnea, fatigue, angina, dizziness, or syncope,
or; left ventricular dysfunction with an ejection fraction of
30 to 50 percent. A 100 percent rating is assigned with
documented coronary artery disease resulting in chronic
congestive heart failure, or; a workload of less than 3 METs
or less results in dyspnea, fatigue, angina, dizziness, or
syncope, or; left ventricular function with an ejection
fraction of less than 30 percent. 38 C.F.R. § 4.104,
Diagnostic Code 7005 (2001).
One MET (metabolic equivalent) is the energy cost of standing
quietly at rest and represents an oxygen uptake of 3.5
milliliters per kilogram of body weight per minute. When the
level of METs at which dyspnea, fatigue, angina, dizziness,
or syncope is required for evaluation, and a laboratory
determination of METs by exercise testing cannot be done for
medical reasons, an estimation by a medical examiner of the
level of activity (expressed in METs and supported by
specific examples, such as slow stair climbing or shoveling
snow) that results in dyspnea, fatigue, angina, dizziness, or
syncope may be used. 38 C.F.R. § 4.104, note 2 (2001).
The Board will proceed to analyze the veteran's claim for an
increased rating for his cardiovascular disability to
determine if the new or old criteria are more favorable to
him. See VAOPGCPREC 3-2000; 65 Fed Reg. 33422 (2000). If an
increase is warranted based solely on the revised criteria,
the effective date of the increase cannot be earlier than the
effective date of the revised criteria. 38 C.F.R. § 3.114
(2001).
It is apparent after a review of the record, that the veteran
does not meet the criteria for a 100 percent rating under the
criteria for evaluating cardiovascular disorder under
Diagnostic Code 7005 that became effective in January 1998.
The veteran does not suffer from chronic congestive heart
failure, and his workload capacity is currently estimated to
be about 5 METs rather than the workload capacity of less
than 3 METs required under the current schedular criteria for
a 100 percent schedular rating. His ventricular function is
currently estimated to be about 40 percent which is
considerably better than the ejection fraction of less than
30 percent required for a 100 percent schedular evaluation
under the new regulations.
The veteran does, however, meet the criteria for a 100
percent evaluation under the schedular criteria for
evaluating his cardiovascular disability under Diagnostic
Code 7005 that was in effect prior to January 1998. On
examination in May 2001, the veteran was shown to have both
angina on moderate exertion, and to be precluded from more
than sedentary employment because of his service connected
cardiovascular disability. Since that is the case, a 100
percent rating under the criteria for rating the veteran's
service connected cardiovascular disorder is warranted under
the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7005, in
effect prior to January 12, 1998.
ORDER
A 100 percent schedular rating for the veteran's
cardiovascular disease is granted, subject to the regulations
governing the payment of monetary benefits.
____________________________
_________________________________
DEREK R. BROWN
RICHARD C. THRASHER
Member, Board of Veterans' Appeals Acting
Member, Board of Veterans' Appeals
NANCY R. ROBIN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.